United States v. Rodriguez

United States Court of Appeals
For the First Circuit
____________________

No. 06-2719

UNITED STATES OF AMERICA,

Appellee,

v.

WILFREDO FELICIANO RODRIGUEZ,

Defendant, Appellant.
_________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
____________________

Before

Boudin, Chief Judge,
Selya, Circuit Judge,
and Keenan, District Judge. *

____________________

Linda Backiel for appellant.
German A. Rieckehoff, Assistant United States Attorney, with
whom Rosa Rodriguez Velez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, were on brief for
appellee.

May 13, 2008

*
The Honorable John F. Keenan, United States District Judge
for the Southern District of New York, sitting by designation.
 KEENAN, District Judge. Appellant Wilfredo Feliciano

Rodriguez (“Feliciano”) was convicted after a jury trial for his

participation in a multi-drug conspiracy that operated out of the

Nuestra Senora de Covadonga public housing complex in Trujillo

Alto, Puerto Rico (“Covadonga”), from 1998 through 2004. Feliciano

challenges his conviction on the grounds that the cumulative effect

of evidentiary errors deprived him of a fair trial and that the

evidence presented at trial varied impermissibly from the

allegations contained in the indictment. In addition, Feliciano

challenges his sentence on the grounds that the district court

imposed an unreasonable sentence; clearly erred in making findings

regarding drug quantity and the brandishing of a firearm; imposed

a sentence that was above the statutory maximum for the charge of

conspiracy to possess weapons in furtherance of narcotics

trafficking; and erroneously imposed consecutive sentences for two

section 924(c) violations that were based on a single underlying

drug conspiracy. For the following reasons, we affirm Appellant’s

convictions on Counts One, Two, and Six; vacate the conviction on

Count Four; vacate the sentences on Counts Two and Six but not on

Count One; and remand for re-sentencing on Counts Two and Six.

BACKGROUND

Appellant was one of eleven co-defendants charged in a

six-count superseding indictment (the “Indictment”) returned on

March 11, 2004 by a grand jury sitting in the District of Puerto

-2-
Rico. The Indictment charged Feliciano in four counts. Count One

charged him with conspiracy to possess with intent to distribute

five kilograms or more of cocaine, 50 grams or more of crack, one

kilogram or more of heroin, and/or 1000 kilograms or more of

marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A),

846, and 860. Count Two charged him with conspiracy to use

firearms in furtherance of the drug conspiracy, in violation of 18

U.S.C. §§ 924(c)(1)(A) and 924(o). Counts Four and Six each

charged Feliciano with using and/or brandishing firearms in

furtherance of a drug trafficking crime, respectively, on April 10,

2003 and April 19, 2003, in violation of 18 U.S.C. §

924(c)(1)(A)(ii).

Feliciano’s co-defendants pleaded guilty and were

eventually sentenced to terms ranging from 57 to 132 months.

Feliciano opted to go to trial.

The Government’s evidence of Feliciano’s participation in

the drug conspiracy at Covadonga consisted primarily of the

testimony of Omar Medina, a cooperating co-conspirator who was a

drug runner and seller at Covadonga; and the testimony of Oscar

Espada, a government informant who was installed in a vacant

apartment at Covadonga and directed by his police handlers to make

secret videotape recordings of narcotics deals that took place at

the drug point outside his building.

-3-
 Medina’s testimony established the following. Between

1998 and 2004, the Covadonga drug point operated as a thriving drug

marketplace in which different dealers sold various brands, or

lines, of crack, cocaine, heroin, and marijuana, with the organized

assistance of runners and lookouts equipped with walkie-talkies.

Feliciano, whom Medina knew since their childhood growing up

together in the housing complex, began working in the drug trade at

Covadonga in 1998, when he was a teenager. Feliciano assisted his

brother-in-law, Bebe, in Bebe’s operation of a drug point by

sorting cocaine into bags and organizing the bags into quantities

of one hundred, or “decks”. Feliciano also acted as Bebe’s runner,

distributing cocaine and collecting the $5 in proceeds from the

sale of each baggie. Feliciano served as a runner on a daily

basis, delivering between 50 and 100 bags of cocaine, two or three

times per eight hour shift.

Feliciano worked for Bebe from 1998 until 2002, when Bebe

was murdered after a power struggle over control of the drug point.

During this period, Medina also worked at the drug point as a

seller and runner of marijuana, crack, cocaine, and heroin. Medina

testified that, after Bebe’s murder, an individual named Luis

Osorio, a/k/a “Trumpi”, assumed power over the drug point and was

joined by Cristian Villegas, a/k/a “Casi”. In April 2003, “Trumpi”

was murdered, “Casi” was driven out of Covadonga, and Feliciano,

along with Alex Trujillo, assumed control. Feliciano acted as a

-4-
leader, or owner, until his arrest on June 1, 2004. Trujillo went

into hiding and, at the time of Feliciano’s trial, remained a

fugitive.

As the owner of a drug point, Feliciano employed various

runners and sellers, including Medina, who sold bags of heroin and

cocaine on Feliciano’s behalf. Feliciano’s heroin was

distinguished from the heroin sold by other dealers at Covadonga by

blue foil packaging, and his cocaine was distinguished by pictures

of a little bus that were stamped onto the bags.

Medina testified that drug workers in Covadonga regularly

carried weapons to protect their drug operations. Medina observed

Feliciano carrying weapons at Covadonga several times in 2003. In

addition, Feliciano authorized the distribution of and supplied

weapons to his drug workers at Covadonga. Medina also testified

that Feliciano himself fired an AR-15 rifle at “shady”-looking cars

that passed through Covadonga.

Espada, a professional photographer who was in the

witness protection program at the time that he agreed to work on

the Government’s behalf, testified about his installation at

Covadonga, his infiltration of the drug ring, and the videotapes he

made of numerous drug transactions that took place at the drug

point that Appellant operated, which was located outside Espada’s

building. Espada surreptitiously videotaped the narcotics activity

from his apartment window. Espada began making recordings upon his

-5-
arrival at Covadonga in October 2002 and stopped only in April

2003, when he fled Covadonga in the wake of “Trumpi”’s murder.

Espada testified that he was mistakenly believed to be associated

with “Casi” and “Trumpi” and that shots were fired at him.

The Government introduced into evidence 78 videotapes

recorded by Espada. Feliciano appeared on four tapes made on four

separate days: December 21 and 31, 2002 and April 10 and 19, 2003.

The videotape of December 21, 2002 showed Feliciano delivering a

package of cocaine to and receiving cash from an individual named

“Junito”, whom Medina identified as one of the sellers at the drug

point. The December 31, 2002 videotape also showed Feliciano

receiving money from a drug sale. The videotapes of April 10 and

19, 2003 corresponded to the overt acts charged in the Indictment

in connection with the section 924(c) violations charged in Counts

Four and Six and showed Appellant and his co-conspirators in

possession of firearms. Espada also testified that he observed

Feliciano on a number of occasions possess and distribute weapons

and cocaine.

Medina was called on to describe the activity that was

depicted on the videotapes and, in particular, to identify

Feliciano. On the April 10 videotape, Medina identified Feliciano

handing a pistol to an individual named “Siese”, whom Medina

described as the owner of a drug point in a housing complex outside

of Covadonga. Also on the April 10 videotape, Medina identified

-6-
“Carli” Rojas, one of Feliciano’s drug sellers, with a firearm in

his waistband, which Medina said Rojas carried for protection. On

the April 19 videotape, Medina identified Feliciano carrying a

firearm in his hand in the company of three men whose functions

Medina did not identify.

In addition to the testimonies of Medina and Espada, the

Government offered at the outset of its case the testimony of Drug

Enforcement Administration Agent Anthony Toro Zambrano (“Toro”),

the lead agent on the case. Agent Toro was qualified as an expert

in the operations of drug conspiracies and testified about the

manner in which a drug point typically functions, including the

hierarchy among leaders, sellers, enforcers, runners, and lookouts,

and the manner in which different brands of drugs are typically

packaged. Toro also testified about his seizure of drugs and drug

paraphernalia from the Covadonga apartment of Alex Trujillo, the

individual who Medina testified “took over” the Covadonga drug

operation along with Feliciano. The drugs and paraphernalia seized

by Toro displayed the markings of several different brands of

narcotics that were sold by different drug owners at Covadonga.

After a ten-day trial, the jury found Feliciano guilty on

all four counts. The jury also found by special verdict form that

the drug conspiracy charged in Count One involved the threshold

drug quantities charged in the Indictment. The district court

sentenced Feliciano to concurrent sentences of life imprisonment on

-7-
Counts One and Two. The court also imposed a sentence of seven

years on Count Four, based on a finding of brandishing, and 25

years on Count Six, the mandatory minimum sentence for a second or

subsequent conviction under section 924(c), with the sentences on

Counts Four and Six to run consecutively to each other and to the

life sentences in Counts One and Two. Thus, Feliciano received

cumulative sentences of life imprisonment plus 32 years. This

timely appeal followed.

DISCUSSION

(I) Alleged Evidentiary Errors

Feliciano claims that the cumulative effect of improperly

introduced evidence deprived him of a fair trial. The evidence to

which he objects consisted of: (a) purportedly improper testimony

of the lead agent, Agent Toro; (b) testimony regarding Medina’s

purchase of a rifle on behalf of Alex Trujillo; and (c) Espada’s

testimony about statements he heard from Feliciano’s drug workers

regarding Feliciano’s status as a drug dealer at Covadonga.

We review adequately preserved objections to rulings

admitting or excluding evidence for abuse of discretion. See United

States v. Gobbi, 471 F.3d 302, 311 (1st Cir. 2006). If there is

error, “it is settled that a non-constitutional evidentiary error

is harmless (and, therefore, does not require a new trial) so long

as it is highly probable that the error did not influence the

verdict.” United States v. Flemmi, 402 F.3d 79, 95 (1st Cir. 2005)

-8-
(internal quotations and modifications omitted). When the

appellant did not assert a timely objection at trial, we review

only for plain error. See id. at 86. The plain error standard

requires this court to “find [1] that there is error [2] that is

plain and [3] that affects substantial rights. When these three

elements are satisfied, an appellate court may exercise its

discretion to correct the error . . . only if the forfeited error

seriously affects the fairness, integrity or public reputation of

judicial proceedings.” United States v. Epstein, 426 F.3d 431, 437

(1st Cir. 2005) (internal quotation marks and citation

omitted)(alterations in original). “For the third prong, the

defendant has the burden of showing prejudice or that the error

‘affected the outcome of the district court proceedings.’” Id.

(quoting United States v. Colon-Munoz, 192 F.3d 210, 222 (1st Cir.

1999)).

(A) Agent Toro’s Testimony

(i) “Overview” Testimony

Feliciano claims that, as a result of improper “overview”

testimony given by Agent Toro at the outset of the Government’s

case, “the jury heard that Appellant was not merely a part of the

conspiracy but its leader” and “was invited to speculate about his

role in the murder of the previous leader, and various shootings,

including at Oscar Espada and Agent Toro.” Because Feliciano

-9-
raised no objection to the testimony at trial, we review only for

plain error.

This court on several occasions has strongly cautioned

the Government against the practice of having a case agent make

conclusory statements about a defendant’s culpability at the

beginning of the prosecution’s case, before any supporting evidence

has been offered. See, e.g., Garcia-Morales, 382 F.3d 12 (1st Cir.

2004); United States v. Casas, 356 F.3d 104, 119 (1st Cir. 2004);

United States v. Mazza, 792 F.2d 1210 (1st Cir. 1986); see also 6

Weinstein’s Federal Evidence § 1006.04[3] (observing that it is

generally viewed as “improper . . . for a party to open its case

with an overview witness who summarizes evidence that has not yet

been presented to the jury”). In Casas, we explained that

[the use of] overview testimony is inherently
problematic: such testimony raises the very real specter
that the jury verdict could be influenced by statements
of fact or credibility assessments in the overview but
not in evidence. There is also the possibility that later
testimony might be different than what the overview
witness assumed; objections could be sustained or the
witness could change his or her story. Overview testimony
by government agents is especially problematic because
juries may place greater weight on evidence perceived to
have the imprimatur of the government.

356 F.3d at 119-20.

The purported “overview” testimony that Appellant claims

to be objectionable is contained largely in the following response

of Agent Toro, on direct examination, to the question of why Espada

stopped making recordings of narcotics activity at Covadonga:

-10-
 Q. Why did those recordings stop in April 2003, sir?

A. Well, on April 5, 2003, one of the leaders of the drug
point, whose name was Luis Osorio, also known as Trumpi, was
murdered. Mr. Oscar Espada had developed a good friendship
with Trumpi, with Luis Osorio, and when Mr. Alex Capo Trujillo
and Wilfredo Feliciano Rodriguez took over the leadership of
the drug point, they evicted or ran Mr. Espada out of the
housing, public housing project, because Mr. Espada was
perceived, was seen as being part of the organization, as part
of the group, of Mr. Osorio’s group.

Q. Sir, what happened to Mr. Espada after April ’03?

A. Well, on a Sunday morning he was shot inside the housing
project, the public housing project, and we decided to pull
him out of the apartment.

As the Government concedes, Agent Toro’s statement that

Feliciano and Alex Trujillo assumed leadership of the Covadonga

drug operation after the murder of “Trumpi” and “evicted or ran Mr.

Espada out” of Covadonga, was precisely the sort of improper

overview testimony from a case agent that we have condemned. Agent

Toro’s remarks were not based on his personal observations, and no

evidence had been presented to support his conclusion that

Appellant was in fact a leader of the drug point or that he

participated in Espada’s violent eviction from the housing project.

See Garcia-Morales, 382 F.3d at 17 (finding that it was error to

allow the case agent “to testify that [the defendant] was a member

of the drug conspiracy, even though the prosecution had not yet

introduced evidence supporting this conclusion”). In addition,

Appellant argues that Agent Toro’s statements were particularly

harmful because they implicitly linked Feliciano to the attempted

-11-
shooting of Espada and to the murder of “Trumpi”, thus inculpating

Appellant in two highly prejudicial uncharged acts of violence,

about which the Government presented no admissible evidence.

Although Agent Toro’s statements constituted improper

hearsay testimony, Appellant cannot surmount the high hurdle of

plain error review and show that the improper remarks affected the

outcome of the trial. The determination of whether Agent Toro’s

testimony was harmful “demands a panoramic, case-specific inquiry

considering, among other things, the centrality of the tainted

material, its uniqueness, its prejudicial impact, the uses to which

it was put during the trial, the relative strengths of the parties’

cases, and any telltales that furnish clues to the likelihood that

the error affected the factfinder’s resolution of a material

issue.’” Casas, 356 F.3d at 121 (quoting United States v.

Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993)).

Agent Toro’s hearsay statement that Feliciano assumed

leadership of the drug point was harmless in light of the ample

evidence subsequently presented by the Government to prove that

Feliciano did in fact act as a leader of the Covadonga drug point

beginning in April 2003, following “Trumpi”’s murder. Omar Medina

testified at length about Feliciano’s leadership role at Covadonga.

Medina’s testimony established that Feliciano employed him, as well

as at least five other sellers and runners, to sell heroin and

cocaine on a daily basis. The evidence also showed that Feliciano

-12-
supplied his drug workers with firearms. In addition, the

videotapes secretly made by Espada showed Feliciano carrying a

weapon and engaging in drug transactions with individuals who

Medina testified worked for Feliciano. Thus, because ample

evidence was subsequently offered to show that Feliciano was, in

fact, a leader of the drug conspiracy at Covadonga, Agent Toro’s

hearsay remarks had minimal impact and were harmless. See, e.g.,

United States v. Guadalupe, 407 F.3d 492, 500 (1st Cir. 2005)

(finding no plain error in admission of purportedly improper

overview testimony where government presented overwhelming evidence

of defendant’s guilt); Casas, 356 F.3d at 122 (finding that case

agent’s hearsay conclusion that defendant was leader of drug

organization was harmless because such a conclusion “was the same

determination that the jury would have drawn in the absence of the

inadmissible testimony,” in light of government’s substantial

evidence).

Similarly, although Agent Toro’s conclusion that

Feliciano and Trujillo ran Espada out of Covadonga remained

unsubstantiated by subsequent evidence and possibly resulted in

some small degree of prejudice against Feliciano, the error was

ultimately harmless. Even if the jury accepted as true Agent

Toro’s conclusory remark about Appellant’s involvement in Espada’s

violent ouster, the tainted material was hardly central to the

Government’s case.

-13-
 To support a conviction for the charged narcotics

conspiracy, the Government was not required to prove that Feliciano

attempted to shoot Espada or otherwise participated in his

eviction. See Garcia-Morales, 382 F.3d at 18 (finding improper

testimony harmless in part because the evidence “was not essential

to proving [Appellant’s] involvement in the conspiracy”). Further,

the Government did not make extensive use of Toro’s suggestion that

Feliciano ran Espada out of Covadonga. Apart from the above-quoted

remark from Agent Toro’s testimony, the Government did not link

Feliciano to the attempted shooting of Espada and did not attempt

in its opening or closing arguments to imply that Feliciano played

a role in that incident. Finally, as discussed, the Government

offered substantial evidence of Appellant’s guilt. By contrast,

the defense’s case was relatively weak, largely limited to cross-

examination of the prosecution’s witnesses. In light of “the

strength of the prosecution’s case and the limited impact of the

improperly admitted testimony, we are convinced that the jurors’

judgment was not substantially swayed by the error.” Id. (internal

quotation marks and citation omitted).

To the extent that Appellant objects to Agent Toro’s

testimony on the ground that it permitted the jury to speculate

about whether Appellant played a part in the murder of “Trumpi”,

the argument is without merit. Although Agent Toro stated that

Feliciano became a leader of the drug point after “Trumpi” “was

-14-
murdered,” Toro did not attribute the murder to Feliciano. The

mere possibility that the jury may have speculated that Feliciano

played some role in the assassination of the individual whom he

supplanted as an owner of the drug point does not rise to the level

of plain error.

(ii) Disclosure of Underlying Data

Feliciano argues that Agent Toro, although qualified to

give lay opinion testimony about the general operation of drug

points under Rule 701 of the Federal Rules of Evidence, should not

have been permitted to “reveal to the jury the underlying data on

which he based his opinions, as is permitted, under certain

conditions, for an expert testifying pursuant to Rule 702.” The

only “underlying data” that Appellant identifies is “[h]earsay

gleaned from police reports about [Appellant’s] relation to Alex

Trujillo’s violent take over.”

Rule 703 of the Federal Rules of Evidence provides, in

pertinent part, that “[f]acts or data that are otherwise

inadmissible shall not be disclosed to the jury by the proponent of

the opinion or inference unless the court determines that their

probative value in assisting the jury to evaluate the expert’s

opinion substantially outweighs their prejudicial effect.” Fed. R.

Evid. 703. Here, Appellant has failed to identify the underlying

data that Agent Toro purportedly disclosed to the jury in

discussing Alex Trujillo’s role in the drug conspiracy at

-15-
Covadonga. There is no indication that Agent Toro quoted from, or

cited to, police reports, the accounts of non-testifying

informants, or other inadmissible material regarding Trujillo’s

relationship to Appellant or his “violent take-over” of the drug

point at Covadonga. Although Agent Toro did briefly refer to an

indictment filed against Trujillo by the “Mass Murder office,”

which charged Trujillo with drug activity in another housing

project, that indictment had no connection to Trujillo’s

relationship with Appellant or with the drug conspiracy at

Covadonga. Thus, Appellant’s argument is without merit.

(iii) Rule 403

Feliciano claims that Agent Toro’s comments regarding the

murder of “Trumpi”, the shooting of Espada in connection with the

alleged takeover of Covadonga by Feliciano and Trujillo, and

Trujillo’s status as a fugitive wanted by Puerto Rico’s “Mass

Murder office” were unfairly prejudicial, in violation of Rule 403.

Under Rule 403 of the Federal Rules of Evidence even

relevant evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice.” Fed.

R. Evid. 403. Evidence is unfairly prejudicial if it “invites the

jury to render a verdict on an improper emotional basis.” United

States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000) (stating

that a reviewing court should be “cautious when [evidence] is []

shocking or heinous [and, thus,] likely to inflame the jury”

-16-
(internal quotation marks omitted)); see also United States v.

Currier, 836 F.2d 11, 18 (1st Cir. 1987) (“Unfairly prejudicial

evidence . . . is evidence that triggers the mainsprings of human

action in such a way as to cause a jury to base its decision on

something other than the established proposition in the case.”

(internal quotation marks and brackets omitted)). “[O]nly rarely

-- and in extraordinarily compelling circumstances -- will [this

court], from the vista of a cold appellate record, reverse a

district court’s on-the-spot judgment concerning the relative

weighing of probative value and unfair effect.” United States v.

Charles, 456 F.3d 249, 257 (1st Cir. 2006) (internal quotation

marks omitted).

Murder of “Trumpi” & Shooting of Espada

Because Appellant did not object at trial to Agent Toro’s

statements about “Trumpi”’s murder, the subsequent attempted

shooting of Espada, and Espada’s flight from Covadonga, we review

their admission only for plain error. The statements were not so

unfairly prejudicial as to violate Rule 403. The evidence had

probative value because it helped to explain to the jury, first,

why Espada stopped making videotapes and, second, the circumstances

under which Feliciano assumed power at Covadonga, thus providing

relevant contextual information. By contrast the danger of unfair

prejudice was slight, considering the brevity of the testimony and

the fact that Agent Toro did not expressly implicate Appellant in

-17-
“Trumpi”’s murder or in the shooting of Espada. Appellant has not

shown that the potential for undue prejudice outweighed, let alone

substantially outweighed, the probative value of Toro’s statements.

If there was any error, it was harmless, in light of ample evidence

establishing Appellant’s guilt of the charged crimes. See United

States v. Taylor, 284 F.3d 95, 102 (1st Cir. 2002).

Trujillo’s Fugitive Status

When asked the question, “who is Alex Trujillo,” Agent

Toro stated that Trujillo was a fugitive and that the “Mass Murder

office” had filed an indictment against Trujillo, charging him with

drug trafficking at a different public housing complex. Because

Appellant did not object to these statements or move to strike

them, our review is for plain error. The district court did not

commit plain error in permitting Agent Toro to provide this brief

testimony about Trujillo. Although Trujillo’s status as a fugitive

was not highly probative of any element of the crimes with which

Appellant was charged, the fact that Trujillo was wanted by

Commonwealth and federal authorities for narcotics activity did

provide the jury with helpful context. See United States v. Daly,

842 F.2d 1380, 1388 (2d Cir. 1988) (“The trial court may admit

evidence that does not directly establish an element of the offense

charged, in order to provide background for the events alleged in

the indictment.”), quoted in Flemmi, 402 F.3d at 87. Specifically,

Toro’s remarks clarified for the jury why Toro and other agents

-18-
searched Trujillo’s apartment on July 1, 2003. The search, and its

fruits, were important to the Government’s case. The drugs seized

from Trujillo’s apartment were packaged and “branded” with several

different markings, including markings that Medina testified were

particular to the lines of cocaine and heroin that were sold by

Appellant. That drugs belonging to different owners were found in

a single apartment tended to show that the drug operation at

Covadonga was a cooperative effort.

In addition, the district court restricted the scope of

Toro’s testimony about Trujillo’s fugitive status by precluding the

Government from offering into evidence a document, issued by the

United States Marshals Service, indicating that Trujillo was a

fugitive. Appellant has not shown how the district court plainly

erred in balancing the probative value of Toro’s testimony

regarding Trujillo against its prejudicial impact. Moreover, as

with Toro’s statements regarding the murder of “Trumpi” and the

attempted shooting of Espada, any error was harmless, in light of

the Government’s conclusive proof of Feliciano’s guilt.

(B) Medina’s Testimony about the AR-15 Rifle

While Medina was on the stand, the defense objected to

the prosecution’s attempt to elicit testimony about Medina’s

purchase of an AR-15 rifle for Alex Trujillo. At sidebar, the

prosecution represented that Medina would testify that he

subsequently saw Feliciano carrying the rifle that Medina

-19-
purchased. Medina was then permitted to testify about the purchase

but never actually testified that he witnessed Feliciano carrying

the AR-15 rifle that Medina had bought for Trujillo. Rather,

Medina testified that he saw Feliciano carry a different AR-15

rifle and use the rifle to shoot at “shady”-looking cars that

passed through Covadonga.

Feliciano claims that Medina’s testimony regarding the

rifle that Medina purchased on behalf of Trujillo was irrelevant

and highly prejudicial. The Government concedes that Medina never

testified that he saw Feliciano possess the identical rifle that

Medina purchased for Trujillo. However, the Government contends

that Medina’s testimony regarding Feliciano’s possession of another

AR-15 rifle, and his firing of that rifle at passing cars, was

highly relevant to the charges relating to Feliciano’s use of guns

in relation to drug trafficking.

The issue of the testimony’s relevance is governed by

Federal Rule of Evidence 401, which provides that evidence is

relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence."

Fed. R. Evid. 401. Generally, “all relevant evidence is

admissible,” while “evidence which is not relevant is not

admissible.” Fed. R. Evid. 402. Medina’s testimony about

Feliciano’s use of the AR-15 rifle clearly was relevant. Medina’s

-20-
testimony tended to establish that Feliciano used a rifle to

protect Covadonga from interlopers. While Medina’s testimony about

his purchase of the AR-15 rifle on Trujillo’s behalf may have been

irrelevant to Feliciano’s possession of a different AR-15 rifle, it

was nevertheless relevant to show that Trujillo, as a co-owner of

the drug point and a co-conspirator of Appellant’s, conspired to

possess weapons to protect the drug operation.

Further, Appellant has failed to show how testimony about

Feliciano’s possession of the rifle was unfairly prejudicial under

Rule 403. Ample evidence was offered to establish that Feliciano

carried guns on numerous occasions in order to protect his drug

operation. Testimony about his possession and use of a rifle on

the occasion described by Medina was not so inflammatory as to

require exclusion. The district court did not abuse its discretion

in allowing Medina to testify about Feliciano’s possession of the

rifle.

(C) Espada’s Testimony About Co-Conspirators’ Statements

Espada testified that he first learned about Feliciano’s

role as a drug dealer because “Saul” and “Miguelito”, whom

Feliciano employed as, respectively, a drug runner and seller, told

Espada that Feliciano “was in charge of a drug point where he sold

crack and cocaine . . . .” Espada further testified that “Saul”

and “Miguelito” “talked to me about [Appellant], they pointed him

out to me, and they indicated that he was like the big shot at the

-21-
drug point.” (Id. at 211.) Feliciano contends that these were

highly prejudicial hearsay statements, with no basis in personal

knowledge, and that the record is insufficient to permit a court to

determine that the statements were properly admitted as co-

conspirator statements, under Rule 801(d)(2)(E).

At the outset, we note that, although Appellant made a

timely objection to Espada’s testimony regarding the statements of

“Saul” and “Miguelito”, he “did not seek a ruling regarding co-

conspirator statements pursuant to Fed. R. Evid. 801(d)(2)(E) and

United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977).”

United States v. Tom, 330 F.3d 83, 93 (1st Cir. 2003). More

importantly, Appellant did not seek a ruling, as required, “at the

close of all evidence.” United States v. Ciampaglia, 628 F.2d 632,

638 (1st Cir. 1980). “For Petrozziello purposes, the critical

juncture is the close of all the evidence.” United States v.

Candelaria-Silva, 162 F.3d 698, 706 (1st Cir. 1998). Thus, our

review of Appellant’s claim regarding admission of the statements

is for plain error. See Tom, 330 F.3d at 93; United States v.

Woods, 210 F.3d 70, 78 (1st Cir. 2000).

A statement is not hearsay and is therefore admissible if

it is offered against a party and is made “by a coconspirator of a

party during the course and in furtherance of the conspiracy.” Fed.

R. Evid. 801(d)(2)(E). A statement is admissible under Rule

801(d)(2)(E) where the Government demonstrates “by a preponderance

-22-
of the evidence that a conspiracy existed, that the declarant and

the defendant were members of it at the time that the declaration

was made, and that the declaration was in furtherance of the

conspiracy.” Ciampaglia, 628 F.2d at 638. A statement is in

furtherance of the conspiracy if it “tends to advance the objects

of the conspiracy as opposed to thwarting its purpose.” United

States v. Flores-Rivera, 56 F.3d 319, 330 (1st Cir. 1995) (quoting

United States v. Fahey, 769 F.2d 829, 839 (1st Cir. 1985)).

The statements made to Espada by “Saul” and “Miguelito”

were admissible co-conspirator statements under Rule 801(d)(2)(E).

First, the evidence at trial was overwhelming that a drug

conspiracy existed at the Covadonga housing complex.

Second, the Government’s evidence firmly established that

“Saul” and “Miguelito” were Appellant’s co-conspirators in the

distribution of drugs at Covadonga. Medina’s testimony established

that “Saul” was among the drug sellers who, in 2003, regularly sold

$5 bags of heroin and cocaine for Appellant, that “Saul” was in

fact one of Appellant’s most successful sellers, and that he also

acted as one of Appellant’s runners. Officer Quintero, an

undercover agent who posed as a drug buyer and regularly collected

the videotapes made by Espada, testified that “Miguelito” owned a

drug point at Covadonga and also acted as a drug seller.

“Miguelito” was also identified, on one of the videotape recordings

made by Espada, as a participant in a drug transaction.

-23-
 Finally, it is also clear from the record that the

statements made by “Saul” and “Miguelito” were in furtherance of

the drug conspiracy. By explaining Appellant’s role in the

Covadonga drug marketplace to Espada, “Saul” and “Miguelito” were

in essence directing a potential customer to the source of

narcotics, thus steering business toward Feliciano and advancing

the objective of the drug ring. The district court did not commit

plain error in admitting the co-conspirator statements.

In sum, the evidentiary rulings identified by Appellant

were either not errors or, if erroneous, were harmless in light of

ample evidence of Appellant’s guilt. The claimed errors,

considered either individually or cumulatively, do not warrant

reversal of Feliciano’s convictions.

(II) Variance Between the Conspiracy Proven and the Conspiracy
Charged

Feliciano argues that he was prejudiced by a variance

between the evidence presented at trial and the crimes charged in

Counts One and Two of the Indictment. Regarding Count One,

Feliciano claims that the Government’s proof showed that he

participated only in one of many small, unrelated drug conspiracies

operating within Covadonga, rather than the single, over-arching

conspiracy charged in the Indictment. Feliciano also contends that

the proof impermissibly varied from the allegations set forth in

Count One because the evidence showed that he acted as a co-leader

with Alex Trujillo, rather than with Cristian Villegas, a/k/a

-24-
“Casi”, as alleged in the Indictment. Regarding Count Two,

Feliciano claims that the evidence failed to show that he conspired

to possess guns in furtherance of the charged narcotics conspiracy

with the specific individuals named in the Indictment. Further,

Feliciano claims that the jury instructions on both Counts One and

Two were erroneous and contributed to the prejudice that resulted

from the variance on both counts.

A prejudicial variance occurs when: “(1) the facts

proved at trial differ from those alleged in the indictment; and

(2) the error affects the defendant’s substantial rights (i.e.,

when the indictment fails to provide the defendant with sufficient

detail to allow him to prepare a defense, avoid unfair surprise at

trial, and plead double jeopardy when appropriate).” United States

v. Pomales-Lebron, 513 F.3d 262, 269 (1st Cir. 2008) (internal

quotation marks and citation omitted). A claim that the

Government’s proof varied impermissibly from the charges contained

in the indictment is essentially a challenge to the sufficiency of

the evidence. See United States v. Martinez-Medina, 279 F.3d 105,

113 (1st Cir. 2002). As with all such claims, “we ‘canvass the

evidence (direct and circumstantial) in the light most agreeable to

the prosecution and decide whether that evidence, including all

plausible inferences extractable therefrom, enables a rational

factfinder to conclude beyond a reasonable doubt that the defendant

committed the charged crime.’” United States v. Perez-Ruiz, 353

-25-
F.3d 1, 5 (1st Cir. 2003) (quoting United States v. Noah, 130 F.3d

490, 494 (1st Cir. 1997)).

Where, as here, an appellant claims that the evidence

showed that he participated only in one of several, lesser

uncharged conspiracies, rather than the single overarching

conspiracy as charged in the indictment, we

pay particular attention to factors such as whether the
alleged conspirators shared a common purpose, whether
their actions demonstrated interdependency, and the
extent to which participants overlapped during the life
of the alleged conspiracy. At the end of the day, a
defendant cannot succeed with a sufficiency challenge as
long as a plausible reading of the record supports the
jury’s implied finding that he knowingly participated in
the charged conspiracy.
United States v. Balthazard, 360 F.3d 309, 314 (1st Cir. 2004)

(internal quotation marks and citations omitted).

Here, the Government presented sufficient proof that

Feliciano participated as a drug owner in the charged conspiracy.

The Indictment charged that the object of the conspiracy was to

possess with intent to distribute and to distribute “cocaine,

cocaine base (‘crack’), heroin, and marihuana, at different drug

distribution locations (‘drug points’) in the Nuestra Senora de

Covadonga Public Housing Project . . . for significant financial

gain or profit.” The Indictment further charged that Appellant

acted as one of the “Leaders and Owners” of the charged conspiracy.

As discussed above, the testimonies of Medina and Espada, as well

as the videotapes made by Espada, established that Feliciano acted

-26-
as an owner of a heroin and cocaine drug point within Covadonga

from April 2003 until his arrest on June 1, 2004.

There was little variance (and no material variance)

between the Indictment and the proof presented at trial of

Appellant’s drug trafficking at Covadonga. The Indictment did not,

as Appellant implies, define the drug conspiracy at Covadonga as a

“single,” “master,” or “overarching” conspiracy. Further, as the

Government correctly notes, even if the Indictment could be

construed as charging Feliciano with being a leader of an

overarching drug conspiracy at Covadonga, “the evidence established

that the sub-conspiracies indeed functioned as a part of the

grander drug scheme at Covadonga.” Ample evidence established that

the Covadonga housing project functioned as a busy narcotics bazaar

in which the owners of different “brands” of cocaine, crack,

heroin, and marijuana cooperated to sell their distinctly labeled

products. The success of each owner’s drug operation depended on

the overall security of Covadonga, and look-outs employed by

different drug owners acted for the Covadonga marketplace’s benefit

as a whole. Appellant’s own act of firing a rifle at cars being

driven through Covadonga by perceived outsiders suggests that the

different drug owners at Covadonga maintained a common interest in

securing the housing project against outsiders. There was also

substantial evidence presented of overlap among the different drug

operations, consisting not only of the common use of look-outs, but

-27-
of different owners’ use of the same sellers and runners. For

example, Medina’s testimony established that he sold heroin for two

different owners and marijuana for a third owner. In addition,

cohesion among the different “sub-conspiracies” is also implied by

the fact that drugs “branded” with the marks of different owners

were recovered from Trujillo’s apartment; the jury reasonably could

have inferred that the owners of different drug points used a

common space to store their respective drugs and drug

paraphernalia. In sum, there was sufficient evidence for the jury

reasonably to have concluded that, although many drug owners

operated within Covadonga, the Covadonga drug marketplace itself

functioned as a single drug conspiracy.

Even if some variance existed between the Government’s

evidence and the allegations contained in the Indictment, Feliciano

was not unfairly prejudiced. See United States v. Twitty, 72 F.3d

228, 231 (1st Cir. 1995) (“[S]o long as the statutory violation

remains the same, the jury can convict even if the facts found are

somewhat different than those charged -- so long as the difference

does not cause unfair prejudice.”). Specifically, no prejudice

resulted from the fact that the evidence showed that Appellant was

allied with Alex Trujillo, rather than Cristian Villegas, or that

Appellant ran one of several drug points at Covadonga, rather than

the entire drug organization. Regardless of the identity of

Feliciano’s alleged co-leader or the exact scope of Appellant’s

-28-
control of the drug activity at Covadonga, the Government was

required to prove, and succeeded in proving, that Feliciano acted

as a leader of a Covadonga drug point, as alleged in the

Indictment, by employing different sellers and runners to sell

drugs, and by carrying guns and supplying his underlings with guns.

Thus, Feliciano’s “central defense needed to be that he was not

part of [the Covadonga] organization -- as [an owner of drugs], or

in any other capacity.” United States v. Alicea-Cardoza, 132 F.3d

1, 6 (1st Cir. 1997) (finding no impermissible variance where

defendant was indicted “for being a conspirator/triggerman but the

evidence proved him a conspirator/runner”). The defense mounted by

Feliciano did not center on responding to the particular charge

that Appellant was allied with “Casi”. Nor did Appellant prepare

a defense under the mistaken belief that he could concede his

involvement in a smaller conspiracy and was required to contend

only with the Government’s effort to prove that he oversaw all of

the drug points operating within Covadonga. In sum, Feliciano was

not “misled by the government’s evidence at trial to defend himself

on the wrong grounds” and thus was able to “prepare an effective

defense and avoid surprise at trial.” United States v. Fornia-

Castillo, 408 F.3d 52, 68 (1st Cir. 2005) (internal quotations and

citations omitted).

Similarly, no prejudice resulted to Appellant from the

purported variance between the weapons conspiracy charged in Count

-29-
Two of the Indictment and the Government’s proof. Count Two of the

Indictment alleged that Feliciano conspired to use guns in

furtherance of the drug conspiracy charged in Count One with three

co-defendants named in the Indictment (Jose Claudio Ortiz, Jorge

Rodriguez Rosa, and Alfred Rodriguez Rosa) and one co-conspirator

not named in the Indictment (Juan Carlos Rojas Rodriguez, a/k/a

“Carli”). Feliciano argues that the evidence simply did not show

that he conspired with any of the four named men to possess or use

firearms in furtherance of the charged drug conspiracy.

The Government presented sufficient proof that Feliciano

conspired with others to posses firearms in furtherance of the drug

conspiracy. The “essence” of conspiracy is an agreement to commit

a crime. Iannelli v. United States, 420 U.S. 770, 777 (1975).

Here, the Government proved that an agreement existed between

Feliciano and fellow members of the Covadonga drug market to

possess guns in order to provide protection and enforcement for

their drug trade. For example, Medina testified that in 2003, when

he was working at the Covadonga drug point for Feliciano,

Feliciano, Medina, and other sellers carried weapons. In addition,

Medina testified that the use of weapons by drug point workers had

to be authorized by Feliciano and his co-leader, Trujillo. The

Government also proved the existence of the unlawful agreement by

showing conduct, namely the fact that drug owners and sellers

regularly carried guns at Covadonga while dealing in drugs, from

-30-
which the agreement to possess guns in furtherance of the drug

conspiracy could be inferred. See United States v. Concemi, 957

F.2d 942, 950 (1st Cir. 1992) (stating that an agreement may be

inferred from other evidence including a course of conduct).

The Government offered no evidence, however, to show that

any of the four individuals named in Count Two of the Indictment

directly conspired with Feliciano to possess firearms. In

addition, there appears to have been no evidence to show that

Ortiz, Jorge Rosa, or Alfred Rosa actually possessed firearms.1

Nevertheless, despite the lack of any evidence showing an agreement

to possess weapons between Feliciano and the four named

individuals, it is undisputed that the four individuals named in

the Indictment were members of the drug conspiracy. It is also

undisputed that Appellant, as well as other drug owners and sellers

at Covadonga, regularly carried guns to protect themselves and

their drug business. “Taking this evidence in the light most

favorable to the government, the jury was entitled to conclude that

the possession of firearms, given the dangerous nature of the

conspiracy, was a part of that conspiracy’s common course of

action.” United States v. Sullivan, 455 F.3d 248, 261 (4th Cir.

2006). In other words, the jury reasonably could have inferred an

agreement to possess guns between Feliciano and the four named

1
There was evidence, however, to show that “Carli” possessed a
gun. Specifically, Medina identified “Carli” as carrying a
firearm on one of the videotapes made by Espada.

-31-
individuals because they were all members of the Covadonga drug

conspiracy, and members of the drug conspiracy habitually carried

weapons in furtherance of the drug activity.

In any event, the variance between the allegations in

Count Two of the Indictment and the proof adduced at trial was

slight and did not operate to mislead Appellant. Even if the jury

convicted Feliciano on the basis of his conspiracy to possess

firearms with another co-defendant rather than the four named

individuals, this variance was permissible. See Alicea-Cardoza, 132

F.3d at 6 (finding no prejudice in variance because “error in the

indictment was not so grave as to cause [appellant] to defend

himself on the wrong grounds, especially when the evidence adduced

at trial showed [appellant] to be deeply involved in” the charged

conspiracy). Here, the Indictment charged, and thus Feliciano was

on notice, that he conspired to possess guns in furtherance of the

Covadonga drug conspiracy not only with the four named individuals,

but also “with others, known and unknown.” (Indictment at 10.) As

with Count One, Appellant cannot plausibly claim that he was misled

into mounting a defense against Count Two on the wrong grounds.

Appellant’s defense against the charges in Count Two required that

he contend with the Government’s efforts to prove that he agreed to

possess guns with other drug workers at Covadonga. No unfair

surprise or other prejudice resulted from the Government’s

presentation of evidence that established Appellant’s participation

-32-
in the conspiracy to possess weapons with individuals other than

the four specific persons named in the Indictment. Thus, to the

extent a variance existed, it was permissible.

Feliciano also argues that the district court erroneously

instructed the jury regarding the conspiracies charged in both

Counts One and Two. We first note that Appellant failed to propose

alternate jury instructions or to object in a timely manner to the

district court’s jury instructions. “When a defendant neglects to

interpose a contemporaneous objection to the trial court’s jury

instructions in conformity with Federal Rule of Criminal Procedure

30, subsequent claims of instructional error are, for the most

part, forfeit.”2 United States v. Gomez, 255 F.3d 31, 37 (1st Cir.

2001). A narrow exception exists, however, for plain error. See

United States v. Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001).

“[T]he plain error hurdle, high in all events, nowhere looms larger

than in the context of alleged instructional errors.” United States

v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001); see also United States

v. Weston, 960 F.2d 212, 216 (1st Cir. 1992) (“While reversal of a

conviction predicated on unpreserved instructional error is

2
The rule provides in pertinent part:
No party may assign as error any portion of
the charge or omission therefrom unless that party
objects thereto before the jury retires to
consider its verdict, stating distinctly the
matter to which that party objects and the ground
of the objection.
Fed. R. Crim. P. 30.

-33-
theoretically possible, [it is] the rare case in which an improper

instruction will justify reversal of a criminal conviction when no

objection has been made in the trial court.”).

Regarding Count One, Appellant protests that the district

court’s instructions erroneously authorized a conviction upon proof

of a conspiracy other than that charged in the Indictment. The

record indicates, however, that the district court correctly

explained the elements of conspiracy and referred expressly to the

conspiracy charged in the Indictment. Specifically, the court

instructed that the Government must prove beyond a reasonable doubt

the existence of a conspiracy to distribute the charged quantities

of drugs “inside the public housing facility known as Covadonga.”

The court referred to the specific charged conspiracy, namely the

conspiracy to distribute narcotics at Covadonga, several times

during its instruction on Count One. Appellant has not shown how

these instructions were erroneous, let alone how the instructions

were so deficient as to constitute plain error. Compare Paniagua-

Ramos, 251 F.3d at 246 (noting that plain error might theoretically

be found in cases of “glaring omission,” where, for example, “a

trial court fails to instruct a criminal jury on a basic point like

the government’s burden of proof or the presumption of the

defendant’s innocence”).

Similarly, the district court’s instructions on Count Two

did not constitute plain error. The court’s initial instruction

-34-
regarding Count Two instructed that it was a crime “to conspire

during and in relation to a drug trafficking crime, as charged in

count I, to use or carry a firearm or to conspire to possess a

firearm in furtherance of such drug trafficking crime.” As the

Government concedes, this instruction erroneously permitted the

jury to convict Appellant “for a conspiracy to ‘use or carry a

firearm,’ so long as the conspiracy, rather than the use, took

place during and in relation to some drug trafficking crime.” In

other words, the initial instruction wrongfully authorized the jury

to convict by finding that Feliciano agreed with others, at some

point during the drug conspiracy, to possess firearms, without also

finding that the possession was intended to be in relation to the

drug conspiracy.

Almost immediately afterward, however, the district court

repaired its error and issued a correct instruction by stating that

the Government was required to prove that Feliciano “willfully and

intentionally conspir[ed] to commit the offense of using or

carrying a firearm during and in relation to a drug trafficking

crime, or of conspiring to possess a firearm in furtherance of such

drug trafficking crime . . . .” Shortly afterward, in limning the

element of specific intent for Count Two, the court repeated the

correct instruction.

We do not propose that the court’s instruction, including

as it did an initial misstatement of the applicable law, “is either

-35-
letter perfect or insusceptible to any improvement.” Paniagua-

Ramos, 251 F.3d at 246. However, in light of the district court’s

immediate correction and Appellant’s failure to suggest an

alternate instruction or interpose a contemporaneous objection to

the initial, flawed instruction, we find that the instruction as to

Count Two did not rise to the level of plain error.

In sum, we conclude that there was no prejudicial

variance between the crimes charged in Counts One and Two of the

Indictment and the proof of those crimes presented by the

Government at trial. We also find that the jury instructions

relating to Counts One and Two were not plainly erroneous.

(III) Sentencing Errors

Feliciano claims that (a) his sentence was based on an

unreliable calculation of drug quantity; (b) the sentence was

unreasonable because the court failed properly to consider the

relevant statutory factors; (c) his life sentence on Count Two

unlawfully exceeded the statutory maximum of twenty years; (d) the

trial court improperly found that he brandished a firearm in

imposing a seven-year sentence on Count Four; and (e) the

conviction and 25-year sentence on Count Six must be vacated

because it was a second section 924(c) conviction for a single

predicate act and thus violated double jeopardy.

-36-
(A) Drug Quantity

Feliciano argues that the district court erred in finding

that at least 150 kilograms of cocaine were attributable to him.

Although the district court made a clearly erroneous finding as to

drug quantity, the error was harmless in light of substantial

additional evidence in the record that supports the court’s

ultimate finding that Appellant was accountable for more than 150

kilograms of cocaine during the charged conspiracy.

A district court’s factual finding regarding the amount

of drugs attributable to a member of a drug conspiracy will be

disturbed only if it is clearly erroneous. United States v. May,

343 F.3d 1, 6 (1st Cir. 2003). To determine drug quantity, a court

looks to all acts “‘that were part of the same course of conduct or

common scheme or plan as the offense of conviction,’ and takes into

account not only what the defendant knew, but what conduct he

reasonably foresaw.” United States v. Santos, 357 F.3d 136, 140

(1st Cir. 2004) (quoting U.S.S.G. § 1B1.3(a)(2)). “Thus, each co-

conspirator is responsible not only for the drugs he actually

handled but also for the full amount of drugs that he could

reasonably have anticipated would be within the ambit of the

conspiracy.” Id. The trial court’s determination of drug quantity

need only be by a preponderance of the evidence and is not required

to be an exact determination but rather only a reasoned estimate.

See id. at 141. Further, if the trial court bases its estimate on

-37-
one of two plausible views, the determination is not clearly

erroneous. Id.

In determining that Feliciano was responsible for at

least 150 kilograms of cocaine, the district court found that,

during Appellant’s 397-day tenure as a leader of the Covadonga drug

point, the drug point operated for twenty-four hours each day, and

that each day six different sellers, who worked for Appellant, sold

approximately 125 bags of cocaine. Based on these assumptions, the

court calculated that 297,750 bags of cocaine were attributable to

Feliciano. The court further assumed that, based on the testimony

of the Government’s forensic chemist, who weighed the contents of

the fifty bags that Espada purchased from Appellant’s drug point in

a pre-arranged, undercover buy on April 4, 2003, each bag contained

approximately 0.5685 grams of cocaine powder. Thus, the court

calculated, it would take approximately 1,759 bags to constitute

one kilogram of cocaine. Based on these estimates, the court found

that approximately 169 kilograms of cocaine were attributable to

Feliciano. The quantity of 150 kilograms or more yielded a base

offense level of 38. The court imposed a four-level enhancement

for Feliciano’s leadership role and a two-level enhancement for a

protected location,3 for an adjusted offense level of 44, which in

turn yielded a recommendation under the guidelines of life

imprisonment.

3
Feliciano does not challenge the enhancements.

-38-
 Feliciano argues, first, that the weight attributed to

each bag of cocaine was improperly based on a minute sampling of

only 50 of the nearly 300,000 bags for which he was held

accountable. Next, Feliciano protests that the court’s assumption

that six sellers were selling 125 bags each, every day for 397

consecutive days exaggerated “the number of bags per day, the

number of sellers, and the number of days.” Feliciano notes that

the 78 videotapes made by Espada tended to show a less vigorous

level of narcotics activity at the drug point than that testified

to by Medina. Feliciano also argues that Medina’s testimony

regarding the number of shifts and number of sellers at most

indicated that each of the six sellers was working every other day,

rather than every day. Finally, Feliciano attacks the reliability

of Medina’s estimates, characterizing Medina as “an interested,

illiterate witness addicted to cocaine and marijuana whose

inability to manage measures of virtually anything was marginal.”

(Id. at 52.)

The district court did not clearly err in determining

drug quantity on the basis of the relatively small sampling of bags

of cocaine that were weighed by the Government’s chemist. The

court’s finding was supported by evidence offered at trial.

Specifically, Medina testified that cocaine was routinely sorted

into quantities of 100 bags, or “decks,” each of which constituted

an “eighth.” From this testimony, the court reasonably could have

-39-
inferred that 100 bags equaled one eighth of a kilogram of cocaine,

which in turn would result in the determination that each of the

297,750 attributed to Appellant contained approximately 1.25 grams

of cocaine. The district court properly relied on the more

conservative estimate of .5685 grams per bag, thereby “‘chos[ing]

between plausible estimates of drug quantity but [] err[ing] on the

side of caution.’” United States v. Hall, 434 F.3d 42, 61 (1st Cir.

2006) (quoting United States v. Marks, 365 F.3d 101, 105 (1st Cir.

2004)).

The district court also did not clearly err in

determining, from Medina’s testimony, the number of days during

which Appellant acted as the owner of the drug point, the fact that

the drug point operated 24 hours each day, or the fact that sellers

worked in three daily shifts and each seller sold an average of 125

bags of cocaine per day. While it is true that Medina was not

especially exact in his description of dates, times, weights, and

numbers, he nevertheless was intimately involved, as both a runner

and seller, in the operation of Appellant’s drug point. Within

wide limits, not exceeded here, it was the exclusive role of the

trial court to decide the weight to give to Medina’s testimony and

whether to use it as the basis of its drug quantity determination.

See United States v. Huddleston, 194 F.3d 214, 224 (1st Cir. 1999)

(“Notwithstanding some minor discrepancies in [the cooperating

witness’s] testimony, we do not think it unreasonable . . . to

-40-
believe that the testimony of a man experienced in drug deals was

sufficient to establish an appropriate drug quantity.”) (internal

quotation marks and citation omitted); see also United States v.

Webster, 54 F.3d 1, 5 (1st Cir. 1995) (upholding district court’s

decision to credit testimony at sentencing from “an admitted

perjurer, a drug user, and a turncoat, who received a substantially

reduced sentence for implicating others”); United States v.

Indelicato, 97 F.3d 627, 632 (1st Cir. 1996) (“Credibility

judgments at sentencing are the trial judge’s province. . . .”)

(citation omitted). Given Medina’s extensive involvement with

Feliciano in the drug activity at issue, it was not clear error for

the trial court to credit Medina’s estimations and use them as the

basis of its calculation of the overall quantity of cocaine that

was attributable to Feliciano. Nor did the court clearly err in

opting to credit Medina’s testimony rather than infer, from the

content of Espada’s videotapes, that the drug trade was less brisk

than Medina described.

The district court committed clear error, however, in

finding that six sellers worked “every day,” selling cocaine,

during the period of Appellant’s leadership. As Medina’s testimony

established, and as the Government concedes, each seller worked

only every other day. Thus, based on Medina’s testimony, the court

reasonably could conclude only that the equivalent of three, rather

than six, sellers worked each day. The district court therefore

-41-
erroneously doubled the quantity of cocaine attributable to

Feliciano during his 397 days of leadership, and on its reasoning

should have found that Appellant was responsible for 84.5 kilograms

of cocaine, rather than 169 kilograms.

If a district court makes an erroneous factual finding

under the sentencing guidelines, yet “there is enough evidence to

support the alternative explanation for the court’s finding, the

error would be harmless and there would be no reason to remand to

the district court when the result will be the same.” United States

v. Pizarro-Berrios, 448 F.3d 1, 8 (1st Cir. 2006); see also United

States v. Brown, 450 F.3d 76, 80 (1st Cir. 2006). We therefore

must decide whether the record supports the finding that Appellant

was responsible for more than 150 kilograms of cocaine.

There was ample additional evidence in the record to

establish that an additional quantity of cocaine, sufficient to

make up for the “lost” 84.5 kilograms, was attributable to

Feliciano by virtue of his activity as a drug runner and packager

for Bebe, from 1998 to 2002. Medina’s testimony (which the court

credited) established that both he and Feliciano acted as runners

for Bebe from 1998 to 2002, and that Feliciano delivered between 50

and 100 bags of cocaine, two or three times per day. As the

Government correctly notes, using the most conservative estimates

of 50 bags of cocaine, twice per day, over a period of four (rather

than five) years, a total of 146,000 additional bags, or

-42-
approximately 84.6 kilograms, of cocaine are properly attributable

to Feliciano. These estimates are especially cautious because they

account only for the cocaine that Appellant personally handled, as

a runner or packager, and not for additional amounts handled by

other runners or sellers who worked for Bebe, such as Medina, and

whose drug activity was reasonably foreseeable by Feliciano.

Although the district court did not make specific drug quantity

calculations relating to Appellant’s conduct as a drug runner and

packager, the court noted in its sentencing memorandum that, in

addition to the drugs attributable to Appellant as a result of his

activity as a leader of the drug point in 2003 and 2004, “defendant

served as a ‘runner’ or decked cocaine at that same [drug] ‘point’

beginning in 1998 and throughout the years 1999, 2000, 2001, and

2002.” Thus, the district court expressly considered Feliciano’s

role as a runner, from 1998 through 2002, as an alternative

explanation for the finding that he was responsible for more than

150 kilograms of cocaine.

In sum, because there is clear record support for the

district court’s finding that Appellant was accountable for more

than 150 kilograms of cocaine during the charged conspiracy, we

need not remand for re-sentencing on this issue.

(B) Reasonableness

Appellant claims that his sentence of life plus 32 years

is unreasonable because the district court failed to pay proper

-43-
consideration to several of the relevant factors set forth in 18

U.S.C. § 3553(a).

Following the Supreme Court’s decision in United States

v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738 (2005), we review

challenges to sentences for reasonableness, regardless of whether

the sentence falls within the range recommended under the United

States Sentencing Guidelines. See United States v. Deppe, 509 F.3d

54, 62 (1st Cir. 2007). “Even though Booker decreed the sentencing

guidelines to be only advisory, the guidelines still play an

important role in the sentencing procedure, so that (as was done

here) a court should ordinarily begin by calculating the applicable

guideline range.” United States v. Gilman, 478 F.3d 440, 445 (1st

Cir. 2007). After calculating the advisory Guidelines range, the

court “must evaluate the factors set out in Section 3553(a) to

consider whether to exercise its discretion to impose a non-

guideline sentence . . . and no less important, the court must

provide a detailed, case-specific explanation for imposing the

chosen sentence.” Id. (internal citations omitted). “The

sentencing court may not mechanically assume that the [Guidelines]

frame[] the boundaries of a reasonable sentence in every case.”

United States v. Martin, No. 06-1983, 2008 U.S. App. LEXIS 5906

(1st Cir. Mar. 21, 2008) (citing Gall v. United States, 128 S. Ct.

586, 169 L. Ed. 2d 445 (2007)). Ultimately, we review a trial

court’s sentence with substantial deference, and as long “as we

-44-
discern ‘a plausible explanation’ for the sentence and a

‘defensible overall result,’ we will not second-guess the district

court’s informed judgment.” Id. (quoting United States v. Jimenez-

Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc)).

Feliciano contends that the district court, in imposing

a life sentence, did not sufficiently account for several of the

factors set forth in Section 3553(a). Appellant claims that

aspects of his history should have militated in favor of a more

lenient sentence, including his lack of a criminal record; the

suicide of his father when Feliciano was only eleven years old; and

Feliciano’s upbringing in the housing project amidst poverty,

violence, and drug trafficking. Feliciano also argues that the

need for just punishment is not served because “the sentence

imposed, while it certainly fulfills the need for punishment,

responds to a conception of justice close to revenge.” In

addition, Feliciano asserts that the goal of rehabilitation is

overwhelmed by the accomplishment of specific deterrence, namely

“incapacitation.”

Feliciano’s within-guidelines sentence was not

unreasonable. The district court expressly stated at sentencing

that it had considered the factors set forth in Section 3553(a),

recited the factors, and then gave a specific explanation for the

sentence. The court noted the protracted life span of the drug

conspiracy and Appellant’s long-term participation in the criminal

-45-
enterprise; Appellant’s role as a leader for more than one year;

and Appellant’s use of weapons. The court concluded that, “[a]ll

factors considered, [Feliciano’s] role as a leader of this very

dangerous criminal venture requires that Defendant be sentenced as

recommended by the advisory guideline range, a sentence that is

sufficient but not greater than necessary to meet sentencing

objectives of criminal punishment and deterrence.” That the court

chose to allocate greater weight to the aggravating factors of

Appellant’s crimes, and less to potentially mitigating factors such

as the unfortunate circumstances of Appellant’s upbringing,

“entailed a choice of emphasis, not a sin of omission” and “is not

a basis for a founded claim of sentencing error.” Deppe, 509 F.3d

at 62; see also United States v. Dixon, 449 F.3d 194, 205 (1st Cir.

2006) (“While a sentencing court must consider all of the

applicable section 3553(a) factors, it is not required to address

those factors, one by one, in some sort of rote incantation when

explicating its sentencing decision.”).

Because the district court considered the relevant

statutory factors and provided a plausible explanation for the

within-guidelines range sentence it imposed, Appellant’s challenge

to the reasonableness of his sentence fails.

(C) Life Sentence on Count Two Exceeded Statutory Maximum

Appellant contends, and the Government concedes, that the

life sentence imposed on Count Two exceeded the twenty year

-46-
statutory maximum sentence on Count Two. See 18 U.S.C. § 924(c) and

(o). We therefore vacate the sentence on Count Two and remand for

the imposition of a sentence of no more than twenty years. See

United States v. Ziskind, 491 F.3d 10, 18 (1st Cir. 2007).

(D) Finding of Brandishing

The district court imposed the statutory mandatory

minimum sentence of seven years on Count Four on finding that

Appellant brandished a firearm in connection with his possession of

a weapon on April 10, 2003, in violation of 18 U.S.C. §

924(c)(1)(A)(ii). Under the statute, a defendant is deemed to have

brandished a firearm when he “display[s] all or part of the

firearm, or otherwise make[s] the presence of the firearm known to

another person, in order to intimidate that person." 18 U.S.C. §

924(c)(4). Appellant argues that there is no basis in the record

for the court’s finding of brandishing and thus the sentence must

be vacated. Although Appellant did not object below to the court’s

finding of brandishing, and we thus review the claim only for plain

error, the Government conceded at oral argument that there was no

record support for the court’s determination that Appellant

brandished a firearm.

Review of the record confirms what the Government now

concedes: there is no evidence that Appellant or his co-

conspirators made the presence of a firearm known to anyone else in

order to intimidate that other person. The Government’s evidence

-47-
relating to Count Four appears to have consisted of portions of the

videotape recorded by Espada on April 10, 2003 as well as Medina’s

commentary about those recordings. The relevant portions of the

videotape simply showed Appellant handing a firearm to a drug

dealer who operated out of another housing complex and showed

“Carli” Rojas, a seller who worked for Feliciano, in possession of

a firearm. The record is devoid of any indication that either

Appellant or his co-conspirator displayed firearms with the purpose

of intimidating other persons. Accordingly, we vacate Appellant’s

brandishing conviction on Count Four.

(E) Consecutive Sentences on Section 924(c) Counts

Feliciano points out that his convictions for Count Four

and Count Six arise from the same predicate offense, namely,

possession or use of a firearm in relation to the same drug

conspiracy, in violation of section 924(c). The only difference

between the two counts is that one incident of gun possession

occurred on April 10, 2003 and the second incident occurred on

April 19, 2003. Feliciano argues that the dual section 924(c)

convictions, arising as they do from the same underlying drug

conspiracy, violated the prohibition against double jeopardy, and

that this was plain error. Thus, Feliciano claims, his sentence on

Count Six should be vacated and he should be sentenced only for his

conviction on Count Four. The Government agrees that Counts Four

and Six are based on a single predicate drug offense and concedes

-48-
that it was improper for the trial court to impose two consecutive

sentences for section 924(c) violations arising from the same drug

conspiracy.

In United States v. Pena-Lora, we adopted the position

taken by the majority of our sister circuits and held that the

imposition of multiple consecutive sentences under subsection

924(c) for using multiple weapons during a single predicate crime

“would impinge upon fundamental ‘double jeopardy’ principles.” 225

F.3d 17, 32 (1st Cir. 2000); see also United States v. Anderson, 59

F.3d 1323, 1334 (D.C. Cir. 1995); United States v. Lindsay, 985

F.2d 666, 674 (2d Cir. 1993); United States v. Privette, 947 F.2d

1259, 1262-63 (5th Cir. 1991); United States v. Taylor, 13 F.3d

986, 994 (6th Cir. 1994); United States v. Cappas, 29 F.3d 1187,

1191 (7th Cir. 1994); United States v. Fontanilla, 849 F.2d 1257,

1258-59 (9th Cir. 1988); United States v. Moore, 958 F.2d 310, 312

(10th Cir. 1992); United States v. Hamilton, 953 F.2d 1344, 1346

(11th Cir. 1992). Accordingly, in Pena-Lora, we found that the

district court had committed plain error in imposing consecutive

sentences for the appellant’s two acts of firearm possession that

had taken place during a single underlying act of hostage-taking.

Here, too, the district court plainly erred in imposing

multiple consecutive sentences for two acts of firearm possession

arising from the same predicate drug conspiracy. Thus, we must

vacate one of the two section 924(c) convictions and remand for re-

-49-
sentencing on the remaining count. Having determined that the

district court erred in finding that Appellant brandished a firearm

in imposing sentence on Count Four, it now “makes no difference

under § 924(c) whether [Feliciano] is convicted and sentenced for

Count [4] or Count [6], since both carry five-year mandatory

minimum penalties and both are supported by sufficient evidence.”

Taylor, 13 F.3d at 994. Thus, we vacate Appellant’s conviction and

sentence on Count Four, affirm Appellant’s conviction on Count Six,

and remand to the district court for re-sentencing on Count Six to

the statutory minimum term of five years, to run consecutively to

the sentences imposed on Counts One and Two.

CONCLUSION

For the foregoing reasons, we AFFIRM Feliciano’s

conviction and sentence on Count One. We AFFIRM Feliciano’s

conviction on Count Two but VACATE the sentence previously imposed

on that count and REMAND for re-sentencing with an order to the

district court to re-sentence Appellant on that count to term of no

more than twenty years. Feliciano’s conviction on Count Four is

VACATED and the special assessment on that count is to be removed.

Feliciano’s conviction on Count Six is AFFIRMED, but we vacate the

sentence previously imposed on that count and REMAND for re-

sentencing with an order to the district court to sentence

Appellant on that count to the statutory mandatory minimum term of

-50-
five years, to run consecutively to the sentences imposed on Counts

One and Two.

-51-